R v XX

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Respondent) File Number(s): 2015/217807 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 October 2016 Before: Hunt DCJ File Number(s): 2015/217807

Judgment

1. BATHURST CJ: I agree with Beech-Jones J.
2. R A HULME J: I agree with Beech-Jones J.
3. BEECH-JONES J: This judgment concerns a Crown appeal against a sentence imposed by his Honour Judge Hunt DCJ on the Respondent for three offences involving the sexual abuse of his four year old daughter. The publication of material capable of identifying her is prohibited (Crimes Act 1900, s 578A; Children (Criminal Proceedings) Act 1987, s 15A). Accordingly the Respondent will be referred to as "XX" and his daughter as "YY".
4. On 28 October 2016, XX was sentenced in the District Court for three offences to which he had pleaded guilty. All of the offences were committed between 1 July 2013 and 31 May 2014. The first offence was having sexual intercourse with a person under the age of 10 years in circumstances of aggravation contrary to former s 66A(2) of the Crimes Act. The aggravating circumstance was that the victim was "under the authority" of XX (former s 66A(3)(d)). The maximum penalty for the offence was imprisonment for life. The standard non‑parole period was 15 years.
5. The second offence was aggravated indecent assault on a person under the age of sixteen years contrary to s 61M(2) of the Crimes Act. The circumstance of aggravation was that YY was under the authority of XX (former s 61M(3)(c)). The maximum penalty for this offence was 10 years imprisonment. The standard non‑parole period was 8 years imprisonment.
6. The third offence was aggravated act of indecency with a person under the age of 10 years contrary to s 61O(2) of the Crimes Act. The maximum penalty for this offence was 7 years imprisonment.
7. On 28 October 2016, XX was sentenced to an aggregate term of imprisonment. His Honour made a slip in stating the indicative non‑parole period for the first offence which was corrected on 29 November 2016 pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"). The aggregate sentence that was ultimately imposed was 7 years imprisonment with a non‑parole period of 4 years and 6 months. The aggregate sentence was fixed to commence on 24 July 2015 and will expire on 23 July 2022. Subject to the outcome of this appeal, the non-parole period will expire on 23 January 2020. In accordance with s 53A(2)(b) of the Sentencing Act, his Honour specified indicative sentences for the first, second and third offences as 6 years imprisonment with a non‑parole period of 4 years and 6 months, 4 years and 8 months with a non‑parole period of 3 years and a fixed term of 3 years respectively.
8. In bringing this appeal pursuant to s 5D of the Criminal Appeal Act 1912, the Crown accepts that it must demonstrate four matters. First, it must establish the existence of an error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 505 ("House"). Second, it must identify the sentencing principle that is said to be engaged by the errors (R v DH; R v AH [2014] NSWCCA 326 at [19]). Third, it must demonstrate that "the total sentence imposed - even if erroneously reached by the sentencing judge - was manifestly inadequate in the circumstances of this case" (R v Janceski [2005] NSWCCA 288 at [25] per Hunt AJA with whom Spigelman CJ at [1] and Howie J at [41] agreed ("Janceski"). Fourth, if those matters are established, the Crown must "negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised" (R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12] per Heydon JA cited in CMB v Attorney General for the State of New South Wales [2015] HCA 9; 256 CLR 346 at [34] per French CJ and Gageler J and [56] per Kiefel, Bell and Keane JJ; "CMB").

The Offences

1. Placed before the sentencing judge was an agreed statement of facts relating to the three offences (the "agreed facts"). They state that XX formed a relationship with YY's mother in 2008. YY was born the following year. They had a second child in June 2013.
2. The agreed facts stated that an incident occurred in June 2015 between YY and an eight year old girl that aroused the suspicion of XX's mother. When XX's mother spoke to the eight year old girl and YY about the incident, YY referred to a time "when [she] was little" and "daddy put his thing in me and it hurt". XX's mother texted XX stating "…I need to know has anything happened with you and [YY]. I need to know". XX responded "[a]n incident happened a while ago". The police were then notified.
3. XX was interviewed by the police on 24 July 2015 and again on 19 October 2015. During the first interview he made admissions to the three offences noted above. In particular, he stated that when YY was "about 4" he went into her bedroom while she was sleeping and took off her underwear. He said that he licked her on the vagina. This constituted the conduct the subject of the first offence. YY woke up and asked him what he was doing. XX responded "I'm just going to have some fun ... just going to play a game". XX then began to rub his penis on the outside of YY's vagina. This constituted the conduct the subject of the second offence. YY then began to cry and told XX to stop. XX then began to masturbate. According to the agreed facts "after a short time" XX ejaculated on YY's chest. This constituted the conduct the subject of the third offence. XX then put YY in the shower, dressed her and put her back to bed.

The Sentencing Judgment

1. In the sentencing judgment, his Honour noted the maximum penalty and applicable standard non‑parole periods for the offences and summarised the agreed statement of facts. I note the following points about the sentencing judgment.
2. First, his Honour addressed whether the various aggravating factors specified in s 21A(2) of the Sentencing Act were established. His Honour accepted that the offences were committed in the home of the victim (s 21A(2)(eb)) but considered this had lesser weight as it was also XX's home. His Honour considered whether YY was vulnerable and suffered substantial harm (s 21A(2)(l) and 21A(2)(g)). In relation to the former, his Honour considered that YY's vulnerability is assumed because the offences concerned young children but found there was an additional level of vulnerability for the first offence as YY was asleep when it was committed. In relation to the latter, his Honour received a victim impact statement from YY's mother describing the effect of the offences and their disclosure on her daughter. These included anxiety, anger and attention difficulties. His Honour found that the harm suffered by YY, while likely to be significant, was not "substantial in the sense of over and above the harm that would normally flow from the character of [these] offences".
3. One matter of complaint by the Crown concerns a finding by his Honour that the first offence was not aggravated by XX having "abused a position of trust or authority" (s 21A(2)(k)). His Honour stated: "I accept … the Crown's submission … that being under authority did not necessarily encapsulate all that might be caught by a breach of trust but in the circumstances I am not prepared - because of the element of under authority to consider that the section 66A matter is aggravated by the breach of trust. Clearly there was a breach of trust that operates as an aggravating circumstance in relation to the other two matters, because there is no element dealing with it."
4. Second, his Honour made findings as to the objective seriousness of each offence. His Honour found that the first offence was "just slightly below the midrange of objective seriousness", the second offence was in "the middle range of objective seriousness" and the third offence was "above the middle range of objective seriousness". In making an assessment of the seriousness of the first offence, his Honour referred to the "relatively ... quick..." duration of the offending and that was "unlikely to cause physical trauma" in the manner that other forms of intercourse prohibited by s 66A might. His Honour also noted the very young age of the victim and the other aggravating features just noted.
5. Third, his Honour addressed XX's personal circumstances. At the time he was sentenced, XX was thirty one years of age. He had worked as a truck driver for ten years prior to his arrest. When he was twenty, he was convicted of breaching an Apprehended Violence Order. A year later he was convicted of various dishonesty offences. His Honour considered these convictions were irrelevant to his sentencing for these offences. Instead, his Honour treated XX as a "person of good character". A psychologist's report that was tendered referred to XX as having been sexually abused when he was a child. His Honour accepted that evidence.
6. Fourth, His Honour assessed XX's prospects of reoffending. Based on the psychologist's report, his Honour also accepted that XX had access to pornography since he was aged four and developed a sexual interest in such material from age eleven. However, his Honour noted that XX had denied having a sexual interest in children. In view of that denial, his Honour stated that he had a "guarded view" of XX's prospect of rehabilitation. His Honour found XX to be "towards the lower end of moderate risk in relation to the prospect of reoffending".
7. Fifth, his Honour accepted that XX was remorseful. In making that finding, his Honour emphasised XX's disclosure of his offending to the authorities in the first interview noted in [11]. His Honour also stated XX was "entitled to an unquantified discount" because he provided the authorities with admissions that "might have been impossible to extract in an admissible way from [YY]". No complaint was made by the Crown about this aspect of his Honour's reasons.
8. Sixth, his Honour accepted that XX had "clinically established levels of depression and anxiety that are now very high". His Honour found that, as a result, a custodial sentence was "likely to weigh more heavily on him".
9. Seventh, his Honour found that XX was entitled to a twenty five per cent discount on account of the utilitarian value of his plea of guilty.
10. Eighth, his Honour addressed in some detail a contention that XX should receive a discount on account of the assistance he gave to the police and prosecuting authorities in 2006 and 2007 in pursuing a charge of conspiracy to murder. XX had been approached by the two conspirators to murder the spouse of one of them. XX reported the approach to police and provided them with various items of evidence. He introduced an undercover police officer to the conspirators. XX provided the prosecution with four statements and gave evidence at the trial of the conspirators. He received a payment of $17,000.00 for this assistance. His Honour addressed the criteria in s 23(2) of the Sentencing Act and ultimately concluded that XX's assistance warranted a 15 per cent discount. His Honour's reasons for so finding are set out below. This aspect of his Honour's judgment is the subject of complaint by the Crown's first ground of appeal.
11. Ninth, his Honour made a finding of special circumstances under s 44(2) of the Sentencing Act based on XX serving his first time in custody and the "deep need for rehabilitation". This finding was not challenged by the Crown.

Ground 1: Error in allowing a discount for assistance

1. Ground 1 of the appeal contends that the sentencing judge "erred by allowing a discount for assistance [given by XX] to the authorities". This ground raises a number of issues concerning the interpretation and application of s 23 of the Sentencing Act, which is set out at [29].

Section 23 - Approach

1. The Crown's detailed written submissions in support of this ground review a number of judgments of this Court concerning the proffering of discounts to offenders who assist the police. These include judgments published prior to the enactment of the statutory predecessor to s 23 that addressed the approach to discounts for informers at common law. The Crown's primary submission was that the proffering of a discount on account of the assistance given by XX was "not open as a matter of law because the 'assistance' given by [XX] in the capacity of a witness does not fit into any of the categories established by the case law". In particular, the Crown contended that, as there was no connection between the crimes the subject of XX's assistance and the crimes with which he was charged, as XX was not a victim of the conspiracy to murder and was not otherwise an "informer" providing a steady stream of information over a period of years, then the "assistance" provided by XX did not fall within s 23(1) of the Sentencing Act.
2. In the alternative, the Crown submitted that it was "not open" to the learned sentencing judge in the "exercise of his discretion" to provide a discount in circumstances where XX had provided the assistance in 2006 for an unrelated offence committed by others, had been rewarded for his assistance and had not, as a consequence of providing any assistance, served any custodial sentence in circumstances of hardship.
3. On behalf of XX it was correctly submitted that the Crown's approach of seeking to ascertain the scope and limits of s 23 by reference to case law, including judgments that preceded the enactment of its statutory predecessor, was misconceived. Instead, it was submitted that the following statement from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ); ("Alcan") is relevantly authoritative: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." (footnotes omitted)
4. While allowing for the primacy of the text of the statute, this passage leaves scope for a consideration of "historical considerations and extrinsic materials" as part of the process of ascertaining the context, including the purpose and policy of a provision and the mischief it seeks to remedy. Section 34(1) of the Interpretation Act 1987 enables regard to be had to such materials for the purpose of confirming that the meaning of a provision is the ordinary meaning conveyed by the text or to resolve any ambiguity or avoid absurdity. As explained below, a review of the extrinsic materials may include a consideration of aspects of the judgments referred to by the Crown, but only within the constraints of the above statement from Alcan.
5. The ascertainment of the purpose and policy behind a provision such as s 23 of the Sentencing Act has a twofold significance in a case such as this. First, because the Court must prefer a construction that promotes the purpose or object of the Sentencing Act (Interpretation Act, s 33). Second, because in considering a discretionary power such as that conferred by s 23(1), the "general rule is that the extent of the discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment" (FAI Insurances Ltd v Winneke [1982] HCA 26; 151 CLR 342 at 368 per Mason J).

The Text - Section 23

1. Consistent with the above, it is necessary to commence with the text of s 23 of the Sentencing Act. It provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
2. Statutory provisions such as s 23(2) which require that certain matters be taken into account, or that regard be had to them, usually require that weight be given to those considerations such that they are "at the forefront of the decision-maker's consideration" although they are not determinative (Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; 86 NSWLR 527 at [215] to [216]; see R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; 180 CLR 322 at 329). Further, while s 23(2) specifies matters that must be taken into account, that does not necessarily mean that it is an exhaustive list of the matters to be considered (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 per Mason J; "Peko-Wallsend"). Although it is not necessary to decide, it seems very unlikely that s 23(2) should be construed as an exhaustive list of the factors that can be considered, given the multitude of circumstances in which the section might be invoked and its legislative history (see [38]).
3. As noted, the Crown's primary submission concerns the scope of s 23(1). In considering the scope of that provision, it must be remembered that the section confers a discretion and not an obligation on a sentencing judge to proffer a discount when assistance has been provided (see Williamson v R [2015] NSWCCA 250 at [68]; "Williamson"). A contention that certain forms of assistance should only be considered in unusual or exceptional circumstances does not raise an issue about the scope of s 23(1). Instead it only concerns the manner of the exercise of the power conferred by the provision. That said, three matters should be noted about the text of s 23(1).
4. First, the assistance referred to in the section is not defined. Nothing in the section purports to limit the type of assistance that falls within the provision beyond requiring that it be assistance to "law enforcement authorities" in the "prevention, detection or investigation, or in proceedings relating to" an offence. Subsection 23(1) has been construed to exclude unwitting assistance (R v Fabrizio Calderoni [2000] NSWCCA 511 at [9] per Sully J with whom Bell and Whealy JJ agreed). Otherwise, to date the provision has not been read narrowly. In CMB it was held that disclosure by an offender to law enforcement authorities of otherwise unknown guilt involves the provision of assistance to law enforcement authorities within the meaning of s 23(1) (at [72] per Kiefel, Bell and Keane JJ and at [41] per French CJ and Gageler J). Further, the assistance referred to in s23(1) is not confined to assistance concerning offences of which the offender was the perpetrator. In RJT v R [2012] NSWCCA 280; 218 A Crim R 490 ("RJT"), Basten JA and Adams J held that s 23(1) was engaged when, after the offender was arrested for sexual offences against children, he provided assistance to the authorities concerning historical sexual offences of which he was the victim (at [2] per Basten JA and [13] per Adams J; cf R A Hulme J at [74]).
5. In RJT at [6], Basten JA left open the question as to whether or not the circumstance that an offender provides assistance as an independent witness falls within s 23(1). At this point it suffices to note that nothing in s 23(1) suggests any limitation to that effect. As I will explain, s 23 has its origins in concerns over discounts proffered to persons who became informers after they were arrested, including informers who gave evidence as witnesses. The section was intended to regulate, not eliminate, that practice.
6. Second, in referring to "any other offence," s 23(1) clearly contemplates that the assistance may have been provided in relation to an offence other than the offence for which the offender is to be sentenced. Further, s 23(2)(i) differentiates between assistance provided for the offence for which the offender is being sentenced and assistance having been provided for an "unrelated" offence. The concept of "unrelated" in s 23(2)(i) should not be construed as a reference to "wholly unrelated" as otherwise this provision would not be engaged if the assistance was provided by the offender in relation to offences that are associated with, but not the same as, the offence for which they are being sentenced. Thus, s 23(2)(i) focuses attention on the degree of connection between the offences for which assistance has been provided and the offences for which the offender is being sentenced.
7. Third, nothing in s 23(1) suggests that the assistance referred to must have been provided after the offender was arrested. Accordingly past assistance, that is assistance provided prior to the offender's arrest or commission of the subject offence, appears capable of falling within the provision, although there would still remain to be considered the relationship between the offence the subject of the assistance and the offence for which the offender is being sentenced (the "subject offence") (s 23(2)(i)). If the assistance was provided after the offender's arrest on the subject offence, then there will be at least a bare temporal connection of some kind between the offence the subject of the assistance and the subject offence (although there may be an issue about the timeliness of the assistance: s 23(2)(e)). On the other hand, if the assistance was provided well before the commission of the subject offence or the arrest of the offender for the subject offence, then it will be that much harder to conclude that there is any connection between the two offences.
8. None of this analysis provides any support for the Crown's primary contention noted in [24] namely, that the assistance provided by XX, referred to above, was not capable of falling within s 23(1). However, the matters noted in [34] and [35] suggest that the lack of any connection between the conspiracy to murder and the offences for which XX was being sentenced was of significance to any consideration of whether to exercise the discretion conferred by s 23(1) to impose a lesser penalty. To consider this further regard may be had to the legislative history of s 23, including the extrinsic materials, but only in a manner consistent with what is stated in [26] to [28].

Historical Considerations and Extrinsic Materials

1. The legislative history of s 23 of the Sentencing Act was addressed by R A Hulme J in RJT at [57] to [61]. Provisions almost identical to s 23(1), 23(2) and 23(3) were originally enacted as s 442B(1), 442B(3) and 442B(2) respectively of the Crimes Act by the Criminal Legislation (Amendment Act) 1992. Former s 442B(4) provided that the factors specified in former s 442B(3) were not exhaustive. The list of factors now found in s 23(2) are identical to those listed in former s 442B(3) except that former s 442B(3)(a) required consideration of the effect of the offence for which the offender was being sentenced on the victim or their family and s 442B(3)(j) required that consideration be given to the likelihood that the offender would commit further offences after their release. As I will explain, those provisions were introduced in direct response to concerns raised over the decision of this Court in R v Many (1990) 51 A Crim R 54 ("Many") discussed below (at [42ff]).
2. In 1999, former s 442B was repealed and replaced by s 23 of the Sentencing Act. Other than the deletion of former s 442B(4) which specified that the enumerated factors were not exhaustive, there was no substantive difference between the two provisions (see RJT at [60]). The second reading speech did not mention the deletion of former s 442B(4) (New South Wales Legislative Assembly, Second Reading, Crimes (Sentencing Procedure Bill), Hansard, 28 October 1999, 2325ff). The Explanatory Note merely stated that s 23 was "similar to current section 442B of the Crimes Act 1900" (Explanatory Note to Crimes (Sentencing Procedure) Bill 1999). Thus, this material suggests that the repeal of s 442B(4) was not considered to have any substantive effect.
3. With effect from 19 November 2001, s 22A was inserted into the Sentencing Act as part of a package of amendments that included the pre-trial disclosure provisions now found in Division 2A of Part 3 of the Criminal Procedure Act 1986 (see Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001). Section 22A enables a sentencing court to impose a lesser penalty having regard to "the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise)". This provision is directed to rewarding assistance provided by an accused person to the courts by narrowing the issues and the like. It appears to assume that such assistance does not fall within s 23(1). That assumption derived greater force when s 23(4) was inserted into the Sentencing Act. There is no equivalent in s 22A. If the assistance contemplated by s 23 also fell within s 22A then sentencing courts would be obliged to quantify the reduction in sentence if they proceeded under s 23, but not if they proceeded under s 22A.
4. With effect from 14 March 2011, s 23 was amended by the deletion of s 23(2)(a) and (j) (see [37]) and the insertion of s 23(4) to (6) (Crimes (Sentencing Procedure) Amendment Act 2010; Schedule 1.2). The Explanatory Note to the amending bill stated that these changes gave effect to recommendations of the Sentencing Council in its report entitled "Reduction in Penalties at Sentence"(New South Wales Sentencing Council, Reduction in Penalties at Sentence, August 2009) (see New South Wales Legislative Assembly, Explanatory Note to Crimes (Sentencing Procedure) Amendment Bill 2010, Hansard 2 December 2010).
5. In light of the Crown's submissions, it is necessary to consider the extrinsic materials relevant to the introduction of s 442B. In RJT at [58], R A Hulme J noted that the origin of s 442B was the Crimes (Amendment) Bill 1991 (the "1991 Bill"), which lapsed when Parliament was prorogued but was then re‑presented in a form that became the Criminal Legislation (Amendment Act) 1992 (the "1992 Act"). The second reading speeches for the 1992 Act referred to the 1991 Bill.
6. In the second reading speech to the 1991 Bill, the then Attorney-General referred to "great community concern" that had been expressed since the decision in Many about the "appropriateness of the extent of the sentencing discount given to those who provide information to the authorities" (New South Wales Legislative Assembly, Second Reading, Crimes (Amendment) Bill, Hansard, 18 April 1991 at 2519). The Attorney-General referred to the "well established principle of sentencing that those who provide assistance to the authorities should be given a discount on ... sentence ... to encourage the provision of inside information which leads to the conviction of many criminals". The Attorney-General noted the public controversy surrounding the decision in Many in that the "problem in that case was that the sentence that Many ultimately received bore little relationship to the objective circumstances of his offences". According to the Attorney-General, the response was the introduction of s 442B to "regulate the way in which courts discount sentences because of assistance to law enforcement officials" (at 2521.1). To that end, the Attorney-General referred to the provisions of former s 442B(2) (now s 23(3)). The Attorney-General also referred to the various factors specified in former s 442B(3) (now s 23(2)).
7. In relation to the provisions corresponding to ss 23(2)(f) and 23(2)(i), the Attorney-General stated (at 2521): "Another matter which the Court must consider is any benefits that the offender has gained or may gain by reason of the assistance. This will allow any alternative means of rewarding those who assist the authorities to be taken into account. Thus, benefits an offender gains, such as more favourable conditions of custody or financial payments may in some cases be sufficient reward for the assistance and no further reward through a reduced sentence may be given. Another important matter that the Court must consider is whether the offence for which the offender is being sentenced is related to the offence about which information is given. It could be expected that an offender who is being sentenced for an offence which is unrelated to the offence about which assistance is given will receive a smaller reduction." (emphasis added)
8. The Attorney-General's second reading speech demonstrates that s 442B was introduced as a direct response to the outcome in Many. In Many, the offender successfully appealed against his sentence for rape by arguing that he was entitled to a discount for assistance he provided after he was arrested. The offender provided statements and, in one case, became a Crown witness in relation to the investigation of various murder plots he was said to have witnessed or overheard while in custody (at 63). He received a one third discount as a result (at 70). Hence, following Many, s 442B(3)(a) required that express consideration be given to the interests of a victim of an offence where the perpetrator receives a discount for providing assistance and s 442B(2) precluded the affording of discounts that resulted in a disproportionate sentence. Further, Many was an example of what the Attorney-General referred to as unrelated offending in that the conspiracies revealed by Many had nothing to do with his activities as a rapist. That said, at least in Many and unlike this case, the assistance was provided after he committed the rapes and was arrested.
9. In the second reading speech to the 1991 Bill, the Attorney-General adopted the common law's rationale for the proffering of a discount for assistance and also referred to the judgment in Many as exemplifying a mischief that needed to be regulated. It follows that decisions published prior to the enactment of s 442B concerning discounts for informers form part of the background and context in which the provision was enacted. In that regard, two aspects of the approach adopted by sentencing courts to proffering discounts for assistance prior to the enactment of s 442B should be noted.
10. The first is the rationale given in the cases for the discount, namely that it is "in the public interest that offenders should be encourage to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information" (R v Cartwright (1989) 17 NSWLR 243 at 252). This was endorsed by the Attorney-General in the second reading speech for the 1991 Bill and is otherwise apparent from the section. Given that s 23(1) extends to include assistance of the kind embraced by an Ellis discount, that is assistance concerning an offender's other crimes (CMB, supra), this does not exhaust the rationale for the provision. Nevertheless, it suggests that a lesser discount, and in some cases none, is warranted for assistance provided prior to a person's arrest. In such cases the public interest was satisfied upon receipt of the relevant information. It is difficult to envisage how the public interest is facilitated by holding out to persons who have already supplied information the prospect that, if they offend in the future, they might receive a discount for their past assistance.
11. Second, the cases provide some useful examples of the types of assistance that it was contemplated would be regulated by former s 442B when the provision was enacted. Thus, in Many, this Court referred to various types of assistance that may warrant a discount such as the offender revealing the identities of others involved in the subject crimes following his arrest (at p 66), the offender revealing knowledge of criminal activity beyond crimes in which he was involved but which are related to his offending (at p 67) and the offender revealing unrelated criminal activity following his arrest (such as happened in Many itself: at p 67). In its report, Reduction in Penalties at Sentence, the Sentencing Council identified the instance of an offender agreeing to participate in a controlled operation by, for example, agreeing to wear a listening device (at [3.12]).
12. One particular concern of sentencing courts considering discounts for assistance prior to the enactment of s 442B was the circumstance that arose in this case, namely, unrelated assistance provided by an offender prior to their arrest on the subject charge. At least in cases of regular police informers who were in the habit of repeatedly offending, a discount for prior assistance provided in their field of activity was countenanced. This was adverted in the following passage from the judgment of Wells J in The Queen v Robert John and Trevor Graham Golding (1980) 24 SASR 161 at 173: "Where the circumstances are such that an informer is working or living in a trade, industry, business, organization, social sector, or other more or less regular group of associates, and both the information provided and the offence for which he stands to be sentenced relate to, or arise out of, the activities of the group or sector in which he works or lives, the trial judge may the more readily balance the good done with the harm caused. Where there is little or no connection between the two, the trial judge may find himself driven to the conclusion that the prisoner's work as an informer can be considered only by the Governor in the exercise of Executive clemency." (emphasis added)
13. This passage was referred to in Many (at p 67). It was referred to and applied in the following passage from R v Kelly (1993) 30 NSWLR 64 at 70 (per Mahoney JA) ("Kelly"): "I do not think that, as a matter of principle, the fact that the cooperation precedes the instant offence means that it cannot be taken into account in assessing punishment for the instant offence. There are, I think, circumstances in which it may. Thus, in R v Golding (1980) 24 SASR 161 Wells J expressed the opinion that a person who has been an informer for some time and has rendered assistance in the prosecution of crime may be given a more lenient sentence 'to mark the good he has done and in furtherance of the policy …' that 'there should (not) be honour among thieves' (at 172)). Such cases are not limited to cases of informers. Thus, as Mr Adams submitted, where the co-operation given has (to take an abstract example) resulted in the convicted person developing a drug addiction or being placed in a position of temptation to which in the instant case he has succumbed, that may be taken into account in assessing the effect of his previous co-operation. These examples are not exhaustive. It was to this kind of thing that, I think, [the sentencing judge] was referring when he used the phrase "no real direct link … with the present offence". (emphasis added)
14. Kelly concerned a sentence imposed on a federal offender for importing prohibited drugs. He had provided assistance prior to undertaking the importation (at p 69F). The sentencing judge declined to grant a discount because he found the assistance had no "link" or "relationship" to the subject offence (at p 70). Mahoney JA (with whom Gleeson CJ and Campbell J agreed) held that the sentencing judge had erred because "the cooperation given to the police by the applicant had a sufficient relationship to the (subsequent) offence for which he was to be sentenced" (at 71A). While the nature of the assistance provided was not discussed, it seems likely that it related to illegal drugs.
15. Thus the approach at common law was that assistance provided prior to a person's arrest or the commission of the subject offence could justify a discount but that was usually in a context where there was some relationship or connection between the assistance and the later offending such as involvement in a particular sector or with a particular group. The assistance provided in this case was not of that character. It bore no relationship whatsoever to the subject offence and was not provided after XX's arrest for the subject offence. It follows that it is very doubtful that, at common law, XX would have received any discount on the sentence he received for sexually assaulting his daughter on account of the assistance he provided six years previously in the prosecution of a conspiracy to murder. However, as stated, whether or not his assistance justified a discount is decided by reference to s 23 and not the body of case law that existed prior to the enactment of its statutory predecessor.
16. In the end result, a consideration of the "historical considerations and extrinsic materials" concerning s 23 in a manner consistent with the above statement from Alcan and the Interpretation Act reveals the following.
17. First, it confirms that a relatively expansive view of the meaning of "assistance" should be adopted (Interpretation Act, s 34). The predecessor to s 23 was introduced to "regulate" the practice of awarding of discounts on account of assistance. It would defeat that intention to restrict the concept of assistance and leave unregulated some aspects of an offender's conduct in cooperating with the authorities that is arguably related to sentencing. That said, not all conduct of an offender which helps the authorities falls within s 23(1) (see [32] and [39]). Other forms of conduct are at the margins. In RJT at [40], R A Hulme J queried whether the victim of a home burglary who reports the crime to the police years before himself offending can ask for that assistance to be taken into account under s 23(1). It is not necessary to resolve that query other than to note that, even if it does fall within s 23(1), a proper application of the criteria in s 23(2) would compel the conclusion that no lesser penalty should be imposed. For the purposes of this case, it is sufficient to conclude that where the offender was an informant and Crown witness many years prior to the commission of the subject offences, the offender has, nevertheless "assisted" for the purposes of s 23(1).
18. Second, the historical materials and extrinsic materials confirm that, while s 442B and s 23 were enacted to regulate the proffering of discounts, the purpose and object of the conferral of the power in s 23(1) was that stated in Cartwright, namely, the "public interest" in encouraging offenders to supply information to the authorities which will assist them to bring other offenders to justice and to provide evidence. This is subject to s 23(3) which avoids the mischief that was considered to have arisen in Many, namely the awarding of a discount that results in a sentence for the subject offence that is "unreasonably disproportionate". As noted, the rationale for awarding discounts has considerably less strength where the assistance was provided prior to the commission of the subject offence.
19. Third, historical considerations and the extrinsic materials confirm what is suggested by the text of s 23(2) namely that, in respect of assistance that was provided prior to the commission of the subject offence, attention will focus on the extent to which the offence for which assistance was provided was or was not "related" to the subject offence as part of the consideration of all the factors referred to in that provision.

The Discount in this Case

1. It follows that I reject the Crown's primary submission noted in [24]. The form of assistance that was provided by XX was capable of falling within s 23(1). However, it did not necessarily warrant the imposition of a lesser sentence. Whether that was so depended upon the application of the criteria in s 23(2). This raises for consideration the Crown's alternative submission noted in [25].
2. In the sentencing judgment, his Honour outlined the assistance provided by XX and then considered whether the "passing of time" precluded the granting of any discount and "whether the provision of money by the police to the offender has any bearing on whether he should receive a sentencing discount and to what extent". In relation to the latter, the sentencing judge concluded that, given the seriousness of the charge for which XX provided assistance, and the likelihood that his "liberty and/or safety must have been at some risk at some stage", that the $17000 reward should be characterised as "being [in the] moderate rather than the substantial category".
3. His Honour then discussed the operation of s 23 before addressing the criteria in s 23(2) stating: "I am obliged to consider the following matters in Section 23: The significance and usefulness of the offender's assistance The Crown concedes that the offender's assistance to the authorities in the previous matter was significant and useful, and I add to that my finding that it was pivotal, meaning the significance and usefulness of the assistance was greater than the Crown concedes. The truthfulness and reliability of the material It can be inferred from the conviction and the upholding of the conviction that the assistance was considered truthful and reliable. The offender became a registered source for the police. The extent and nature of the offender's assistance It was extensive. It involved participation in the events that brought the offenders to notice. It involved giving a number of statements, and it obviously involved testifying in Court and also being the subject of publication about his assistance. The timeliness of the assistance The assistance was obviously very timely, that is, it was reported within a day of the approach and there was an engagement with the undercover and other offenders that rendered the investigation and the prosecution successful. Any benefits gained I have already indicated that in my view he received a sum of $17,000 that can be seen as moderate rather than substantial to my mind. Whether the offender will suffer harsher custodial conditions? There is no evidence to make that finding. Any injury suffered or danger There is no evidence of that, although there are potentially two parts to that. One, is that years having gone past without any suggestion of retribution to [XX], perhaps make it likely that there is not any danger. Against that, the continued ability to access those records, and the fact that [XX] is in custody, do not reduce that possibility altogether. Whether the offence concerns the current offence? It does not, it concerns an unrelated offence but it seems quite clear that a discount is available." (emphasis added)
4. His Honour then concluded: "Having regard to the fact that the level of assistance was high, permissibly available in relation to an unrelated event, I had in mind that the level of assistance, itself, would in the normal circumstances attract a discount on its own of twenty-five per [cent] I have determined, having regard to the effluxion of some time, limited prospect of actual risk and some other reward (being the $17,000) that the discounting factor in relation to that should be fifteen per cent and no more than that."
5. A determination under s 23(1) that a lesser penalty should be imposed, and, if so, the assessment of the level of reduction, are both discretionary judgments that can only be attacked if an error of the kind identified in House is established. Nevertheless, and notwithstanding the care with which the sentencing judge approached this matter, I consider that such an error has been shown in that his Honour acted on a "wrong principle" and that otherwise the exercise of the power conferred by s 23(1) in this case was "unreasonable" (House at 505).
6. The offence the subject of assistance was unrelated to the subject offence in any of the senses considered in the authorities discussed above or in any other sense. There was no temporal association between the provision of assistance and the arrest of XX for the subject offences. Despite acknowledging that the offences were unrelated, his Honour did not consider that to be a circumstance that may have justified not granting any discount under s 23(1). Instead, in addressing that factor his Honour noted that the offending was unrelated but added that "it seems quite clear that a discount is available". As noted, the factors in s 23(2) are not only relevant to an assessment of the level of discount that must be provided, they also must be considered as part of the assessment of whether any discount should be provided (see [31]). His Honour failed to consider whether the unrelated nature of the offending the subject of the assistance affected an assessment of whether a lesser penalty should be imposed. Instead, his Honour acted on a "wrong principle" in assuming that, once the assistance given by XX fell within s 23(1), a "discount is available" even though it concerned an unrelated offence.
7. Further, in the circumstances of this case a determination under s 23(1) to impose a lesser penalty on account of the assistance XX provided in relation to the conspiracy to murder charge was unreasonable when regard is had to the purpose for which the power in s 23(1) is conferred. As noted, the purpose of the conferral of power by s 23(1) is not much advanced in cases where the assistance was provided well prior to the commission of the offence. This is especially so where the old assistance was completely unrelated to the offences for which the offender is being sentenced and the other factors listed in s 23(2) are, at best, neutral. Unreasonableness can be demonstrated where there is a failure to give adequate weight to a relevant factor of great importance (Peko-Wallsend (at 41 per Mason J). In this case the relevant factor of great importance was the unrelated nature of the offending the subject of the assistance provided some six to seven years prior to the subject offence. A consideration of the other factors in s 23(2) was at best only neutral as to whether a lesser penalty should be imposed given that XX had been rewarded for his assistance and that there was an absence of any ongoing risk of reprisals. In this case, a proper exercise of the discretion could only have led to a refusal to impose a lesser sentence under s 23(1).
8. Accordingly, I accept the Crown's alternative argument. I uphold ground 1 of the appeal.

Grounds 2 and 3: Error in assessing the objective seriousness of the first offence and in not finding that it was aggravated by a breach of trust

1. Ground 2 contends that the sentencing judge erred in his assessment of the objective seriousness of the first offence. Ground 3 contends that the sentencing judge erred "by not finding that [the first offence] was aggravated by a breach of trust". I will address Ground 3 first.
2. Subsection 21A(2)(k) of the Sentencing Act provides that it is an aggravating factor for an offence if "the offender abused a position of trust or authority in relation to the victim". This is subject to the limitation in the concluding words of s 21A(2) that the "court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence".
3. In MRW v R [2011] NSWCCA 260 at [77] ("MRW"), Bathurst CJ (with whom James and Johnson JJ agreed) held that the concepts of an abuse of "a position of trust" and abuse of a "position of authority" in s 21A(2)(k) are different such that an abuse of a position of trust can be an aggravating factor for an offence which has an element that a child was under the offender's authority. Thus in MRW it was held that it was open to the sentencing judge in that case to have taken into account a breach of trust by a father towards his child even though it was an element of the offence in s 66C(2) that the child was under his authority. However, Bathurst CJ added (at [78]): "…when the circumstances giving rise to abuse of trust or abuse of authority arises from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court."
4. In the passage set out at [14] above, the sentencing judge recognised the effect of this decision yet did not give effect to it. Contrary to the submissions made on behalf of XX, I accept that his Honour erred in doing so. However, of itself this error does not demonstrate error in his Honour's assessment of the objective seriousness of the first offence. The "authority" exercised by XX over YY followed from his status as her father such that the abuse of his authority and the abuse of the position of trust in this case arose from the same facts. Consistent with the above passage from MRW, caution should be exercised in giving any significant weight to an abuse of trust by XX as an aggravating factor.
5. In this case the matter of most significance to an assessment of the objective seriousness of the first offence was not so much the fact of XX's betrayal of a position of trust or authority but the extent of the betrayal of the position of authority or trust occupied by XX. In this case the position of trust and authority occupied by XX vis‑a‑vis the victim was that of parent. The betrayal of such an important role was a significant matter in characterising the objective seriousness of the offence.
6. This leads to Ground 2 of the appeal which, as noted, contends that his Honour erred in characterising the first offence as "slightly below the midrange of objective seriousness" of the offence. The Crown accepted that a challenge to that assessment required it to establish that the "particular characterisation which [his] Honour gave to the circumstances of the offence was [not] open" (Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ). The Crown pointed to various matters, including the fact that XX was the victim's father; the vulnerability of YY when she was asleep; the fact that she was sexually assaulted in her own home, and YY's young age, bearing in mind the potential range of ages for victims of this offence.
7. I accept that the matters pointed to by the Crown are deserving of great weight. His Honour was clearly cognisant of them. However his Honour also noted that the form of sexual intercourse was "arguably less serious" in that it was "unlikely to cause physical trauma".
8. In considering the Crown's submission on this issue it is necessary to note the scope of the offending contemplated by s 66A(2) as in force during the relevant period. It was an element of the offence that it was committed in "circumstances of aggravation". Former sub-section 66A(3) defined the various circumstances of aggravation for the purposes of former s 66A(2). These included the infliction of actual bodily harm upon a child or upon any person present or nearby (s 66A(3)(a)), the threatened infliction of such harm "by means of an offensive weapon or instrument" (s 66A(3)(b)), the commission of the offence in company (s 66A(3)(c)), the commission of the offence on a child with a disability or cognitive impairment (s 66A(3)(e) and (f)), taking advantage of an intoxicated or drugged child (s 66A(3)(g)), "depriving the child of his or her liberty" (s 66A(3)(h) or the breaking into a dwelling with an intention to commit the offence (s 66A(3)(i)). All contraventions of former s 66A(2) were heinous crimes and that is especially so for a father who commits an offence on his daughter. Nevertheless, the provision contemplated a number of circumstances that were worse than those present in this case.
9. As noted, the sentencing judge found that the first offence was "just slightly below the midrange of objective seriousness". During oral argument, Counsel for the Crown submitted his Honour should have found that it was "slightly above mid-range" (T 05/04/17 p 9.35). The subtlety of the difference between the two only serves to indicate that the Crown did not demonstrate that the sentencing judge's assessment was not open given the scale of offending contemplated by s 66A(2).
10. For the sake of completeness I note that, with effect from 29 June 2015, former s 66A including s 66A(2) was replaced by a new provision that made all sexual intercourse with a child under the age of ten years punishable by a maximum penalty of imprisonment for life (Crimes Legislation Amendment (Child Sex Offences) Act 2015, Schedule 1)
11. I would uphold Ground 3 but reject Ground 2 of the appeal.

Ground 4: The Sentence Pronounced was manifestly inadequate

1. Ground 4 of the Crown's appeal contends that the sentence was manifestly inadequate. This ground amounts to a contention that the orders of the sentencing judge were "unreasonable or plainly unjust". Intervention by this Court on this basis "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases" but instead is warranted only if "the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong v R [2001] HCA 64; 207 CLR 584 at [58] cited in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [58] to [59]).
2. The written submissions filed on behalf of XX drew attention to the indicative sentences specified by his Honour and then calculated what those sentences were prior to the application of the 40 per cent discount for XX's plea of guilty and assistance. For the first offence this analysis yielded an undiscounted indicative sentence of 10 years, for the second offence a sentence of 7 years and 9 months and for the third offence a sentence of 5 years.
3. It can be accepted that XX's calculations of the undiscounted indicative sentences demonstrate that his Honour's starting point for each sentence was not manifestly inadequate. However, this ground of appeal is directed towards the aggregate sentence and the non‑parole period that was imposed. Just as an error in an indicative sentence does not necessarily demonstrate error in an aggregate sentence (PD v R [2012] NSWCCA 242 at [44]), the specification of appropriate indicative sentences does not necessarily demonstrate that the aggregate sentence was also free of error.
4. In this context, the Crown's contention that the sentence was manifestly inadequate rests in part upon its complaint about the discount of 15 per cent proffered to XX on account of his past assistance. I have already upheld that complaint. The balance of the Crown's complaint concerns the fact that the non‑parole period for the aggregate sentence was the same length as the indicative non‑parole period for the first offence. The Crown submitted that, as a consequence, XX did not receive any "effective punishment for the other sexual acts" he committed against YY. In essence, the Crown complains about his Honour's approach to accumulation and totality. While all three offences were part of the one incident, XX's depraved conduct in committing the second and third offences after YY awoke was a significant escalation of his offending. In those circumstances the sentence for the first offence, especially the non‑parole period, could not reasonably "comprehend and reflect the criminality for the other offence[s]" (Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] per Howie J).
5. Overall I am satisfied the aggregate sentence and, in particular the non‑parole period, was so inadequate that it could only be the result of the "misapplication of principle" (Wong supra).
6. I would uphold Ground 4 of the appeal.

Residual Discretion

1. The Crown submitted that the residual discretion not to intervene should not be exercised (CMB supra). It submitted that there had been no delay in the institution of the appeal, that it was not seeking to conduct the Crown case on a different basis to that put before the sentencing judge, that the expiration of the non-parole period is not imminent, that there is no evidence of any particular matter concerning XX relevant to the exercise of the residual discretion and that a substantial increase in his sentence is warranted.
2. Save for one point, the Crown's points can be accepted. The submissions made on behalf of XX correctly contended that the Crown was conducting its case differently on appeal. Before the sentencing judge the Crown did not contend that XX's past assistance could not fall within s 23(1) of the Sentencing Act but instead submitted that, in the exercise of discretion, no discount was warranted. However, this is ultimately immaterial given that I have rejected the new argument raised on appeal but upheld the position put by the Crown at first instance.
3. The Crown has demonstrated that the residual discretion should not be exercised. Ultimately, the sentence imposed was manifestly inadequate. Public confidence in the administration of justice may be undermined if it remains uncorrected.

Resentencing

1. No additional evidence was adduced on the appeal. It follows that the resentencing of XX falls to be considered having regard to the material that was before the sentencing judge. I adopt his Honour's approach to the matters set out at [13], [16] to [20] and [22]. None of those aspects of the sentencing judgment were challenged on appeal and my assessment accords with that of his Honour. Equally, in light of the above, I adopt the same characterisation of the objective seriousness of the offending of each offence as his Honour found. It follows from [62] that no discount should be afforded for XX's prior assistance.
2. Prior to making any allowance for XX's plea of guilty, the appropriate sentence for the first offence is 10 years imprisonment, for the second offence is 6 years imprisonment and the third offence is 5 years imprisonment. After allowance for his plea, those figures are 7 years and 6 months, 4 years and 6 months and 3 years and 9 months respectively (Sentencing Act, s 53A(2)(b)). The indicative non-parole periods for the first and second offences are 5 years and 3 years respectively (Sentencing Act, s 54B(4)). I propose that XX be sentenced to an aggregate term of imprisonment of 9 years with a non‑parole period of 6 years.
3. Accordingly, I propose the following orders: (1) Appeal allowed; (2) Set aside the aggregate sentence imposed by the District Court on 28 October 2016 and amended on 29 November 2016; (3) In lieu thereof: (a) impose an aggregate sentence of 9 years imprisonment to commence on 24 July 2015 and expire on 23 July 2024; (b) pursuant to s 44(2A) of the Sentencing Act set a non-parole period of 6 years imprisonment; (c) the applicant will become eligible to be released on parole upon the expiry of the non‑parole period on 23 July 2021.

Amendments 10 May 2017 - 10 May 2017 - Date of Orders and Date of Decision corrected on coversheet 17 May 2017 - [10] - First sentence: the first reference to XX was corrected to become a reference to YY, and the words "who was not YY" were deleted. [13] - First sentence: s 21(2), amended to read s 21A(2). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2017